While people may fear a downward spiral toward brown-shirts and book burnings, the truth is that an American police state may show up in a Brooks Brothers suit with an impressive law degree.”

–Ellen Ratner, Nov. 23, 2001

The surest sign that the terrorists may be winning this war is that the United States government, perhaps the world’s last guarantor of the rule of law, is so threatened by a 31-year-old ex-con loser playing at terrorist that it finds it necessary to secretly confine him for almost 30 days. Don’t get me wrong. If Jose Padilla (self-reincarnated as Abdullah Al Mujahir) is actually a member of the turbaned mafia, then I say throw the book at this guy along with the key.

This isn’t a liberal or conservative thing. If the government has it right, this dope was scouting out locations for a “dirty bomb” explosion in Washington, D.C. – where I live along with the rest of the “Inside the Beltway” media/political/government/lobbying/special interest group/bureaucratic elite – you know, the very people conservatives love to hate. And nobody here is anxious to be dusted by a cloud of radioactive powder detonated by some punk looking to become a “made man” with the al-Qaida Cosa Nostra.

But first, I want to know if this Mr. Padilla-Al Mujahir is guilty. And holding him incommunicado in a secret military facility without laying out any evidence for the public’s information is not the way to determine if he’s actually involved.

Some people argue that given the urgency of the war on terrorism, we can’t afford to give this guy due process. But I see it differently. I say we can’t afford not to.

Granted, Padilla is no model citizen. Born in New York, he was raised in Chicago, joined a street gang, was convicted in 1985 for two murders and was later imprisoned in Florida on weapons charges. His next act was to convert to Islam and in 1998, leave this country for the Middle East. His itinerary included stops in Afghanistan and Pakistan, and I’ll be the first to admit that he probably wasn’t there for the room service. On May 8, he returned to the United States; unbeknownst to him, however, he had an invisible traveling mate – the Federal Bureau of Investigation. Once off the plane in Chicago, he was busted and found to be carrying $10,000 in cash (very suspicious – people usually return from a vacation completely broke).

Still, he’s an American citizen – like most of the readers of this column. Just like us, he’s entitled to all of the protections of the United States Constitution, including the Sixth Amendment’s right to a speedy trial and the bedrock of rule of law, Habeas Corpus. Some conservatives like to insist that this is just ACLU-type nitpicking. Nonsense! Forgetting the moral issues, the truth is that these guarantees exist to help find the truth – and unless we know who the real bad guys are, we’re never going to prevent their murderous schemes. Just look at the distractions created by the government’s illegal detention of Mr. Padilla. First there was misinformation – it was first reported that he actually was in possession of bomb components. Attorney General Ashcroft first overstated Mr. Padilla’s role, and the White House has been unclear as to the seriousness of the threat that Mr. Padilla posed. And look at the mass distraction. Countless hours of official time wasted getting stories straight, trying to figure out who this guy was and then belatedly trying to get the truth out. How much easier it would have been to arrest Mr. Padilla, put him in front a magistrate, set bail (if any), give him a lawyer, convene a grand jury and do what comes naturally in a Republic governed by law and not human whim.

Worse, the government’s credibility has been damaged, and in maintaining public support for the war, it can’t afford to risk its good name overcharging Padilla as an “enemy combatant” without due process. Mr. Padilla can now be held almost indefinitely – as the public learns by panicked leaks exactly what – if any – threat he represents. Instead, the government stretches to justify Padilla’s detention by invoking the famous World War II Nazi Saboteur case – which is inapplicable in these circumstances.

Personally I’d rather have my government fighting terrorists than arguing with critics. The government’s behavior here reminds me of Tallyrand’s famous comment on another abuse of justice: “It was worse than a crime,” he quipped. “It was a blunder.”

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